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1997 DIGILAW 146 (GAU)

Manoj Kumar Das v. United Bank of India

1997-08-08

A.K.PATNAIK

body1997
In this application under Article 226 of the Constitution of India, the petitioner has challenged the order of the disciplinary authority imposing on him the punishment of stoppage of three increments with cumulative effect, and the order of the appellate authority rejecting the appeal filed by the petitioner against the said order of punishment of the disciplinary authority. 2. The facts briefly are that the petitioner is an employee of the United Bank of India. By an order dated 29.2.88, the Chief Manager of Dibrugarh Branch, who is the disciplinary authority of the petitioner, initiated a disciplinary proceeding against the petitioner for alleged acts of gross misconduct committed by him while working as Typist-cum-Clerk in the Dibrugarh Brach of United Bank of India and suspended him from service. Thereafter, by a letter dated 5.4.88, the petitioner was served with the charges against him and was asked to submit his written explanation within 7 days from the date of receipt of the said letter. The petitioner submitted his written explanation to the Chief Manager, United Bank of India, Dibrugarh Branch in his letter dated 11.4.88. In the meanwhile, for the very same acts of the petitioner a prosecution was lodged against the petitioner for having committed offences under sections 477A/381, IPC in GR Case No. 795/87 and by judgment dated 12.4.90 the Judicial Magistrate, Ist Class, Dibrugarh acquitted the petitioner of the charges after trial. In the parallel disciplinary proceedings which were initiated against the petitioner however the Enquiry Officer submitted a report with a finding that some of the charges levelled against the petitioner in the said disciplinary proceedings had been proved and established beyond doubt. The disciplinary authority then issued a letter dated 25th August, 1990 to the petitioner stating herein that he agreed with the findings of the Enquiry Officer that the charge against the petitioner of having pasted the ledger folios bearing Nos. 104 to 107, 154 and 155, 174 and 175, 212 and 213 of S/B ledger No. 5 containing transactions during the period from October, 1980 to December 1985 and during September 1986, had been proved and established beyond doubt. 104 to 107, 154 and 155, 174 and 175, 212 and 213 of S/B ledger No. 5 containing transactions during the period from October, 1980 to December 1985 and during September 1986, had been proved and established beyond doubt. In the said letter dated 25th August, 1990, the disciplinary authority further stated that considering the facts and circumstances of the case and the gravity of misconduct and the past records of the petitioner, it had been tentatively decided to impose on him punishment of stoppage of three increments with cumulative effect. In the said letter dated 25.8.90, however, the disciplinary authority stated that before taking final decision with regard to the punishment the petitioner was given an opportunity of being heard personally in terms of clause 19.12 of the Bipartite Settlement dated 19.10.66 on the nature of the proposed punishment on 6th September, 1990 and along with the said letter a copy of the report of the enquiry was enclosed. After receipt of the said letter dated 25.8.90, it appears that the petitioner did not appear before the disciplinary authority on 6.9.90 but submitted a written submission on 3.9.90 and after going through the written submission the disciplinary authority by his order dated 7.9.90 confirmed the punishment of stoppage of 3 increments with cumulative effect against the petitioner. Aggrieved, the petitioner filed an appeal before the Assistant General Manager, United Bank of India, which was disposed of by order dated 17th May, 1990 by the Deputy General Manager (IBR and HK) and the appellate authority. 3. Mr. GP Bhowmik, learned counsel for the petitioner contended that the disciplinary proceedings against the petitioner and the criminal prosecution were based on the same set of facts and that since the petitioner had been acquitted in the criminal case by judgment dated 12.4.90 delivered by the Judicial Magistrate, Ist Class, Dibrugarh, in GR Case No. 795/87, this Court ought to quash the disciplinary proceedings against the petitioner including the order of penalty passed by the disciplinary authority and confirmed by the appellate authority. Mr. Mr. S. Dutta learned counsel appearing for the respondents, on the other hand, argued that a reading of the judgment passed by the Judicial Magistrate, 1st Class, Dibrugarh, in the said GR Case would show that the petitioner had been acquitted as the prosecution had not been able to produce the witnesses to establish the charges against him under sections 477A/3 81, IPC, but the enquiry report in the disciplinary proceeding would clearly show that the charges of misconduct against the petitioner had been established beyond doubt and, therefore, in the facts and circumstances of the case, the Court should not quash the disciplinary proceedings and the order of penalty passed against the petitioner on/the ground that the criminal proceeding against the petitioner on the same set of facts have ended in acquittal. 4. It is well settled that the purpose of enquiry in the disciplinary proceeedings and in a criminal case are entirely different. In a recent case of State of Raj as than vs. BK Meena, (1996) 6 SCC 417 , the Supreme Court observed that the approach and the objective in the criminal proceedings and the disciplinary proceedings were altogether distinct and different. In the disciplinary proceedings, the question was whether the delinquent was guilty of such conduct as would merit his removal from service or a lesser punishment, as the case might be, whereas in the criminal proceedings the question was whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) were established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the case were entirely distinct and different. In view of the said settled position of law, I am of the considered opinion that the power of the disciplinary authority to impose punishment for misconduct on the delinquent employee subsists even after the acquittal of the delinquent employee in a criminal case instituted against him on the same set of facts and the first contention of Mr. Bhowmik that the disciplinary proceedings and the impugned order of punishment are liable to be quashed after the GR Case No.795/87 instituted against the petitioner ended up in his acquittal has no merit. 5. It was next contended by Mr. Bhowmik that the disciplinary proceedings and the impugned order of punishment are liable to be quashed after the GR Case No.795/87 instituted against the petitioner ended up in his acquittal has no merit. 5. It was next contended by Mr. Bhowmik that although several charges had been levelled against the petitioner initially, only some of the charges were, established against the petitioner in the enquiry. Mr. Bhowmik, in particular, pointed out that the charges against the petitioner of having removed ledger folios 273 to 276 of S/B ledger No. 6 for the period from January, 1973 to 20th October, 1983, ledger folios 199 to 202 of S/B ledger No.5 for the period from December, 1971 to September, 1980, Account opening form and specimen signature card of Account No. 12011 standing in the name of his mother Smti Suniti Das had not been established as has been held by the disciplinary authority in its letter dated 25th August, 1990. Mr. Bhowmik further explained that it was only the charge relating to pasting of some ledger folios by the petitioner which had been established against the petitioner and the said charge of misconduct though established was not grave enough to warrant the punishment of stoppage of three increments with cumulative effect. He cited a decision of the Apex Court in the case of BC Chaturvedi vs. Union of India, (1995) 6 SCC 749 , in support of his submission that the Court in appropriate cases can also interfere with the quantum of punishment imposed by the disciplinary authority if it finds that the punishment is disproportionate to the gravity of the misconduct. 6. Mr. Dutta, learned counsel for the respondents, on the other hand, urged that reading of para 18 of the said judgment of the Apex Court in the case of BC Chaturvedi vs.Union of India & others (supra), would show that the Supreme Court while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court, the Court would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the ligitation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. Mr. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court, the Court would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the ligitation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. Mr. Dutta submitted that the charges against the petitioner in the present case which have been established are that he pasted ledger folios containing transactions of S/B account Nos.11216 standing in the name of his mother-in-law Smti Bela Bhattacharyya and 12011 standing in the name of his mother Smti Suniti Das and, therefore, the misconduct that has been established against the petitioner is grave in nature and the punishment of stoppage of three increments with cumulative effect cannot be held to be by any standard disproportionate and in no case can be considered to be shocking to the judicial conscience. 7. I find a lot of force in the aforesaid submission of Mr.Dutta that/misconduct that has been established against the petitioner is of grave nature inasmuch as the petitioner has been found to have tampered the ledger folios relating to S/B Accounts standing in the names of his mother-in-law and his mother. Hence, there is no question of interfering with the punishment imposed by the disciplinary authority on the ground that the same shocks the judicial conscience of the Court. 8. Mr. Bhowmik, however, submitted that from the letter dated 5th April, 1988 of the Chief Manager, Dibrugarh Branch, in which the charges against the petitioner have been spelt out as well as from the letter dated 25.8.90 of the disciplinary authority it is clear that the disciplinary proceedings were to be conducted in accordance with the Bipartite Settlements. Clauses 19.6 and 19.8 of the said Bipartite Settlements which have listed the punishments that can be imposed on an employee of the Bank found guilty of gross misconduct and minor miscounduct respectively are quoted hereinbelow : "19.6 An employee found guilty of gross misconduct may : (a) be dismissed without notice; or (b) be warned or censured, or have an adverse remark entered against him; or (c) be fined; or (d) have his increment stopped; or (e) have his misconduct condoned and be merely discharged. 19.8 An employee found guilty of minor misconduct may : (a) be warned or censured; or (b) have an adverse remark entered against him; or (c) have his increment stopped for a period not longer than six months." According to Mr. Bhowmik neither clause 19.6 nor clause 19.8 empowered the disciplinary authority to impose punishment of stoppage of increments "with cumulative effect" Mr. Bhowmik contended that the disciplinary authority was however empowered to stop increments for a period not exceeding six months in case the employee was found guilty of minor misconduct, and to stop increments for longer period in case the employee was found guilty of gross misconduct. But under the said two clauses of the Bipartite Settlements the disciplinary authority was not empowered to stop the increments of an employee found guilty of either gross or minor misconduct cumulatively. Hence the punishment of stoppage of three increments 'with cumulative eflFect' imposed on the petitioner was beyond jurisdiction of the disciplinary authorifty. 9. Mr. Dutta, on the other hand, submitted that although it is not specifically stated in the aforesaid clauses 19.6 and 19.8 that stoppage of increments with cumulative effect can be ordered by the disciplinary authority, considering the facts and circumstances of the present case where the petitioner had been found guilty of gross misconduct, this Court ought not to interfere with the punishment of stoppage of three increments with cumulative effect, which was reasonable, fair and proportionate to the gravity of misconduct on the part of the petitioner. 10. It is difficult to accept the above submission of Mr. S. Dutta, learned counsel for the respondents. It is not disputed by Mr. Dutta that the Bipartite Settlements between the Bank and its employees have to be followed by the bank in the matter of disciplinary proceedings and the punishment that is to be imposed against an employee. Neither clause 19.6 nor clause 19.8 of the Bipartite Settlements quoted above mentions stoppage of increment with cumulative effect as a punishment for gross or minor misconduct. Clause 19.8 specifies stoppage of increment for a period not longer than six months as one of the punishments and clause 19,6 specfies stoppage of increment as one of the punishment which can be imposed by the disciplinary authority. Clause 19.8 specifies stoppage of increment for a period not longer than six months as one of the punishments and clause 19,6 specfies stoppage of increment as one of the punishment which can be imposed by the disciplinary authority. In the absence of clear provisions in clause 19.6 or in clause 19.8 of the Bipartite Settlements empowering the disciplinary authority to impose punishment of stoppage of increment with cumulative effect, I am of the considered opinion that the disciplinary authority could not have imposed such punishment. Hence the impugned order of punishment of the disciplinary authority so far it relates to stoppage of 3 increments is valid and authorised by clause 1.9.6- of the Bipartite Settlements, but so far it gives cumulative effect to the said stoppage of 3 increments the order is invalid and unauthorised as per the aforesaid clauses 19.6 and 19.8 of the Bipartite Settlements. 11. With the aforesaid observations this writ petition is disposed of and it is directed that the respondents will not give cumulative effect to the stoppage of three increments of the petitioner that has been imposed by way of punishment by the disciplinary authority. However, there shall be no order as to costs.